Impeachment quagmire – is govt. seeking a way out?

( December 16, 2012, Colombo, Sri Lanka Guardian) Elsewhere in these pages Prof. Rajiva Wijesinha tells how he had been asked to come, and then told to sign a resolution calling for the impeachment of the chief justice, even without showing him the content of the motion. The learned professor refused andhe may have drawn wrath from the powers that be, who in fact had appointed him through the national list. But 116 parliamentarians of the ruling party were too eager to please their political bosses and signed the resolution. They did not give a damn if they were oblivious to the contents of the resolution they put their signatures to. That is proof of the pathetic state of affairs in politics in this country and the quality and the character of the people, we the voters, have sent to the august House of Parliament.

It is not clear whether the parliamentary process related to the impeachment would be suspended until the independent committee reaches its decision. Should Parliament decide to do it at the behest of the executive, that would question the much clamoured supremacy of the legislature, which Speaker Chamal Rajapaksa cited when announcing his decision to disregard the Supreme Court directives.

If it was tempting for a bunch of ruling party parliamentarians to initiate the process to impeach the chief justice and score brownie points, it also appeared to be equally tempting for some elements within the inner circles of power.The Supreme Court ruling on the Divineguma Bill had come as a rude shockto the government, which appeared to believe that it has consolidated all powers.

However, now the chickens have come home to roost.

After a highly flawed Parliamentary Select Committee found Chief Justice Dr. Shirani Bandaranayake guilty of three charges, paving the way for her impeachment, the looming possibility of an international and even local backlash bleeped in the government’s radars.

For a government which strives hard to repair bridges with the civilised countries of the world, the impeachment of the chief justice would bound to be a fatal blow.However, those calculations were missing in the government’s game plan. The Bar Association of Sri Lanka (BASL) has resolved not to recognise any replacement to the incumbent chief justice and ask its international counterparts to follow suit. Yesterday, BASL in an extraordinary meeting, passed three resolutions to this effect.

One of the first salvos have been fired by the International Commission of Jurists, which on December 6 issued an statement condemning the move.

That was followed by concerns raised by the three leading legal bodies of the Commonwealth: The Commonwealth Magistrates and Judges Association (CMJA), Commonwealth Lawyers’ Association (CLA) and the Commonwealth Legal Education Association (CLEA), which raised grave concerns that the ‘judiciary and the rule of law have been severely damaged’ due to the flawed procedure adopted in the impeachment.

The three associations noted that the PSC trial has violated the Commonwealth Latimer House principles on the accountability and the separation of power.

“By its arbitrary actions, and its failure to follow even its own constitutional safeguards for the removal of judges, the Sri Lankan Parliament has seriously undermined that principle and called into question its adherence to the shared values of the Commonwealth,” the three associations had noted.

However, behind the barrage of public statements, the government was evaluating worst case scenarios.

One of such would be the re-evaluation of Sri Lanka’s hosting of the much publicised Commonwealth Heads of Government Meeting (CHOGM) in Sri Lanka next year.

Hence the volte-face and another ‘independent commission.’

President Rajapaksa, speaking at an event to ceremoniously declare open a building at the Institute of Chartered Accountants in Sri Lanka, said that he would appoint an ‘independent committee’ to re-evaluate the charges levelled against the chief justice.

“Personally, I disagree with the stance taken by the government parliamentarians over the impeachment motion. Some Members of Parliament are adding 4-1more problems to a person who is already facing enough problems,” he said.

He had said the independent committee which would be appointed by him would look into all aspects of the matter and “on that basis I will take my decision.”

Later in the week, during his breakfast meeting with newspaper editors, the president ruled out claims that he had been compelled to appoint the committee due to international pressure. “I alone appointed it,” he said, adding that there is no constitutional provisions that require him to appoint the committee. This so called committee is bound to further complicate the constitutional process.

This will be detailed in this column.

The president said his actions were not meant to challenge the PSC. Whatever the content of the report, it would be forwarded to the independent committee, he said.

He complained that the chief justice was continuing to hear cases and said that it was ‘unethical.’ Understandable enough, he saw another ‘international conspiracy’ behind the activism against the impeachment of the chief justice.

The president cited that the Chief Justice of the Philippines was impeached, and appeared to suggest his government has unduly been targeted.However, there is a rub. The impeachment of chief justice Renato C. Corona of the Philippines was conducted in a televised public trial,after US$ 2.4 million in foreign currency was found in his deposits. His impeachment was cheered by human rights groups and legal bodies which viewed it as ‘aconstitutional process that protects the independence of the judiciary’ as described by the Asian Human Rights Commission. On the other hand, the impeachment of Chief Justice Bandaranayake is being viewed by a discerning public as a veritable witch-hunt. Chief Justice Bandaranayake has now written to the Speaker askingaction against PSC members, who called her a pissugeni (mad woman) andapi me nonawa thiyagena madawanawa (threatened to give her a hard time).

The president’s decision to appoint an independent committee – as a way out of an increasingly embarrassing situation – would likely further complicate the constitutional process related to the impeachment.

Article 107 (2) of the Constitution sets out the procedure for the removal of judges.

“Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity.”

“Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.”

It is not clear whether the parliamentary process related to the impeachment would be suspended until the independent committee reaches its decision. Should Parliament decide to do it at the behest of the executive, that would question the much clamoured supremacy of the legislature, which Speaker Chamal Rajapaksa cited when announcing his decision to disregard the Supreme Court directives.

Should Parliament proceed to debate the impeachment motion and vote to remove the chief justice, it is not clear as to what the impact the president’s so called ‘independent committee’ would have on the procedure.

But, all above possibilities are largely theoretical. We, the Sri Lankans, know that Parliament,two thirds of which is dominated by the ruling party, is a rubber stamp of the Executive. It would servilely kowtow to the Executive, just like 116 MPswho signed the resolution even without seeing it.

( The Writer, Editor of the Lakbima News, where this piece was originally appeared)

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